REASONS FOR JUDGMENT
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
B.W.
BEFORE THE HONOURABLE MADAM JUSTICE M. FAIRBURN on February 27, 2017 at Brampton, Ontario.
APPEARANCES: A. Bernstein Counsel for the Crown
D. Bains, P. Zbarsky Counsel for Mr. B.W.
HEARD: FRIDAY, JUNE 24, 2016 (Through official Interpreter Mandarin / English)
FAIRBURN, J : (Orally)
I. Overview
T.S. is S.L.’s mother. Between 2000 and 2007, they attended a Brampton church. It is here that they met B.W. He was married at the time but eventually moved to Vancouver. B.W. and his wife split up and in 2007. He and T.S. then became romantically involved. Shortly after their relationship commenced, S.L. told her mother that B.W. was had put his fingers into her “small bum bum”. Months after this disclosure, T.S. and S.L. moved to Vancouver to live with B.W. The three of them lived together until September 2012, at which time T.S. and B.W.’s relationship dissolved.
In April 2013, the allegations underlying the indictment were reported to the police. B.W. is charged with touching S.L. for a sexual purpose pursuant to section 151 of the Criminal Code. S.L. claims that before she and her mother moved to Vancouver to live with B.W., he touched her vagina under her clothing in the church basement. Although she cannot be exact, she says that the touching occurred on multiple occasions.
II. General Legal Principles
I will deal with a few general legal principles at the outset of my reasons.
B.W. is presumed innocent. He started this trial with the presumption of innocence and the Crown carries the burden of displacing the presumption with proof beyond a reasonable doubt that he committed the crimes with which she is charged: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27.
A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone. It is a doubt based on reason and common sense and one that logically arises from the evidence or absence of evidence. While likely or probable guilt is not enough, it is nearly impossible to prove something to an absolute certainty.
If after considering all of the evidence, I am sure that B.W. committed the offence, then I will be satisfied of proof beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that B.W. committed the offence, then I will not be satisfied of proof beyond a reasonable doubt. (See D. Watt, Watt's Manual of Jury Instructions, 2nd Ed., Thomson Reuters Canada Ltd., 2015, Final 13"Reasonable Doubt"; and Lifchus, at paras. 36-40.)
B.W. chose to testify. In determining whether the Crown has proven beyond a reasonable doubt that he committed the offence, I must apply the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742. If I believe his evidence, his denial of wrongdoing, then I must find him not guilty. Even if I do not believe his evidence, but it leaves me in reasonable doubt as to his guilt, then I must find him not guilty. Even if his evidence does not leave me in a reasonable doubt regarding his guilt, I may only find him guilty if, based on the evidence that I do accept, I am satisfied of guilt beyond a reasonable doubt.
B.W. is charged with sexual interference pursuant to section 151 of the Criminal Code. Section 151 makes it an offence to touch a part of the body of a person less than 16 years of age for a sexual purpose. The offence has three essential elements. As applied to this case, the elements are:
(i) that S.L. was under 16 years of age at the time; (ii) that B.W. touched S.L.; and (iii) that the touching was for a sexual purpose.
There is no dispute that S.L. was well less than 16 years of age at the time of the alleged conduct. There is also no dispute that the touching described would constitute sufficient physical contact to make out the second element of the offence, or that touching a child’s vagina in the manner described would involve touching that was clearly for a sexual purpose, meaning it was done for the sexual gratification of the accused or in a manner that violates the sexual integrity of the complainant. There is no suggestion of accidental touching here.
The real question for the Court to decide is whether B.W. touched S.L. in the manner described. He denies the touching occurred. If S.L. was touched in the manner described, it was by someone other than B.W.
III. The Evidence
I will address the evidence in accordance with a time-line.
1) Before 2007
T.S. was married to A.L. S.L. is their only child, born in July 1999. T.S. testified that her husband left her within a year of S.L.’s birth. Efforts to reunite over the next number of years proved unsuccessful. T.S. agreed that she made a few complaints to the police, including that A.L. had assaulted her with a weapon in 2001 and that he sexually assaulted her in 2004. Despite the rockiness of their relationship, T.S. testified that they were not permanently separated until April 2004.
A.L. introduced T.S. and S.L. to a church in Brampton, where they used to attend as a family. After T.S. and A.L. separated, T.S. continued to attend with S.L. This is where they met B.W. and his wife, both active members of the congregation. They met around 2000.
Every Sunday, T.S. would attend church services upstairs and send her daughter down to the church basement, where the kids would convene to be cared for and, when old enough, to receive religious education. T.S. testified that she would go to church at 9:00 a.m. on Sundays and would meet up with her daughter at the end of the church service. They would often eat lunch in the church basement around 1:00 to 2:00 p.m.
Since the separation with her husband, T.S. testified that she was looking for more love and support for her daughter. In 2004, she asked B.W. and his wife to be S.L.’s godparents and they agreed. It was a simple ceremony, followed by B.W. and his wife giving S.L. a red pocket, a traditional Chinese gift involving a red envelope containing some money. B.W. confirmed these details in his evidence.
T.S. was disappointed in the godparents because they did not involve themselves in her daughter’s life and nothing seemed to change. B.W. had started to travel a lot with his work. From time-to-time, he would call T.S. “out of the blue”. He eventually moved to Vancouver. Once when T.S. returned from a visit to China, she received a voicemail message left by B.W., saying that he had separated from his wife.
S.L. confirmed that she went to the Brampton church and would attend the downstairs on Sunday mornings. She would wear her “Sunday’s best”, as she described it, meaning a dress. She recalls that B.W. would pick her up and put his hand near her, as she described it, “private part”. His hand would “push past” her underwear and his finger would go between what she said were the lips of her vagina, something she used to refer to as her “little bum bum”. She cannot recall when this happened relative to B.W. becoming her godfather and she cannot recall how many times it happened, although it was on multiple occasions.
S.L. testified about three incidents in particular. One of the incidents happened in a coatroom located at the bottom and to the right of the stairs into the basement. Another incident happened in a U-shaped hallway. The third incident happened in the lunch area, containing tables and chairs at which people ate lunch. On this occasion, she was seated on B.W.’s lap with her friends on either side. S.L. said that the bottom half of her body was under the table. They were all watching a video on B.W.’s computer. S.L. testified that B.W. placed his hand down the front of her underwear on this occasion and placed his finger in the same location, in her vagina, as he had done previously in the coatroom and in the U-shaped hallway, as well as on other occasions.
As for the coatroom, she described it as having coats all over the place. She denied the suggestion that there was no coatroom in the church. Pastor W. has held various roles at the church over many years, including the relevant time frame. He testified that the room described as a coatroom used to be a classroom, and has more recently been converted to an office. Both Pastor W. and B.W. testified that coats have always been hung in the hallways at the church and there is no coatroom. Many pictures were filed in evidence, and I have had regard to these photographs. They are said to support the suggestion that there is no actual coatroom, and in fact, coats are hung in the hallway. Although there is nothing to prevent people from placing a coat or bag, or multiple coats or bags, down in a basement classroom, Pastor W. testified that this would not conform to the usual practice at the church.
Pastor W. also confirmed about the comings and goings from the church basement on Sunday mornings. He said that during the relevant timeframe, there would be no more than 40 kids in the basement at a time and as few as 20. At times, only 4 to 5 classrooms would be used, leaving many classrooms empty. There may be between 5 to 7 children per class. The room said to be the coatroom, now an office, is small, being roughly 3 by 3 to 4 metres in size.
S.L. confirmed that the incidents only happened in the church basement. She believes she was four to six years of age at the time.
(2) T.S. and B.W.’s Relationship Starts and S.L. is said to Disclose
By 2007, B.W. was living in Vancouver. He travelled to see T.S. on a few occasions. T.S. testified that after one of these visits, her daughter told her in the kitchen that her “godfather” was “bad” and had “put his fingers into my small bum bum”. T.S. testified that this was the term that S.L. used to refer to her vagina at the time. T.S. said that her reaction was one of shock. She thinks that she may have scared her daughter a bit. She asked “what?” Her daughter repeated the same thing and said it had happened many times. According to T.S., her daughter mentioned it a few more times over the next while and T.S. would respond: “Mommy knows”. On one of those occasions they were in the bedroom. According to T.S., it was around the time that S.L. was taking a shower. It was suggested to her in cross-examination that she had never said anything about a shower in her previous statements or evidence. She said that this was likely because she had never been asked.
S.L. recalls disclosing the conduct to her mother while she was taking a shower. She recalls that the conduct was still happening when she told her mother. S.L. has no memory of speaking to her mother about B.W.’s conduct after the shower and before they moved to Vancouver.
On B.W.’s next visit to T.S.’s home, T.S. confronted him with S.L.’s allegations. He denied it. He said that only a beast or animal could do such a thing. These were the words that T.S. described as being the closest in English to what it is that B.W. had said in Mandarin. T.S. testified that while she believed her daughter, she felt badly to have thought of B.W. in this way. She did not want it to be true.
T.S. testified that B.W. pressured her to go live with him in Vancouver. While she made best efforts to get him to move back to Brampton, she says that she was pressured into going to Vancouver. She testified that, while it was against her wish, B.W. promised her a much better life for S.L. and that it would be good for her daughter.
In July 2007, about half a year after S.L. had reported the matter to her mother, T.S. and her daughter moved to live with B.W. in Vancouver.
(3) The First Year of Living in Vancouver and the School Disclosure
Once in Vancouver, T.S. and B.W. moved in together. They joined their financial affairs. It is not in dispute that B.W. trusted T.S. with his financial related matters. He made her his power of attorney on all bank accounts.
S.L. started attending grade 3 French immersion in September 2007. In June 2008, S.L. testified that the class was learning about “health and career” and that the teacher was discussing inappropriate touching. She testified that in response to the lesson, she said: “C’est mon père”. While she was referring to B.W., and says that she would have said step-father if she had been speaking in English, she used the French expression “it is my father” because she was conveying that she had been inappropriately touched, and did not know how to say “step-father” in French.
At first, she denied knowing that there was any confusion among the school authorities regarding who she meant when she said “C’est mon père”. Later she acknowledged that when she spoke to the school counsellor, that they were asking her about her biological father. She said that she did not clear it up because no one asked and that she did not think that the authorities were connecting the two.
In cross-examination, S.L. denied that she spoke to her teacher in English. She says that she would not respond in English to what was said in French. While she sometimes referred to B.W. as “dad”, if she had been speaking in English, she maintains that she would have said “step-dad” because she knew it was important to make the distinction between dad and step-dad. She said that it is not possible that she was being taught this session in English because if she had been, she would have said “step-father”.
She also denied telling her teacher that the touching was why she and her mother had left Toronto.
S.L.’s grade three teacher testified by video-link. She recalls S.L. She testified about the contents of what she called a “care kit” that she teaches to all grade 3 students. She considers it a safety lesson and so despite the fact that she teaches in a French immersion environment, she always teaches the “care kit” in English. She testified that when teaching in the English language, her students typically respond in the English language, although she cannot be absolutely certain about whether S.L. spoke to her in English on this occasion.
While she cannot be sure about this fact, she is sure about what S.L. said about her father having touched her and the reason that she and her mother had left Toronto. While the teacher was vigorously challenged on her level of certainty regarding the purported statement of S.L. as to why she and her mother had left Toronto, the teacher remained firm in her recollection of this statement.
T.S. testified that she met with the school counsellor and S.L.’s teacher. She recalls the counsellor doing most of the talking. She said that the teacher had been discussing private parts in class and that S.L. had said “in French”, that it was just like what her dad did to her. T.S. testified that S.L. used to call B.W. “dad”. When it was suggested she had never said that before her trial evidence, she suggested that it was simply because she had never been asked.
While T.S. says that she knew that S.L. was speaking about B.W., she did not correct the school authorities who were clearly under the misimpression that it was S.L.’s biological father who had touched her daughter. Not only did she not correct the school authorities, but she said that S.L. felt “weird” and “creepy” going to her father’s home. T.S. testified that S.L. would say these things simply because she did not want to go to her father’s home. She preferred to stay with her friends. S.L. agreed that her father visited Vancouver in March of 2008, a few months before the disclosure at school.
T.S. testified that she did not want to correct the school authorities because she did not want her daughter to go through what might ensue if she had corrected them. She explained that in the Chinese culture it is not good for girls to be known as victims of sexual assault. In addition, having had a court experience in the past herself, she did not wish the impact of such a case on her daughter.
When the disclosure was made at school, B.W. was working in Australia. T.S. said nothing to him. Instead, she and S.L. joined him during the summer of 2008 and they travelled together to places such as Australia, New Zealand, the Great Barrier Reef, Hawaii and other locations.
(4) Fall 2008: Alleged Second Confrontation of B.W.
T.S. testified that while she wanted to confront B.W. with what her daughter had said at school, she needed to wait so that she could do it “face-to-face”. She wanted to look into his eyes and talk to him. She was waiting for an opportunity to do so but it did not present itself until their return from their travels over the summer of 2008.
According to T.S., one night S.L. told her mother she was not happy. T.S. says that she confronted B.W. and thinks that she caught him off guard. She asked what he had done to her daughter and insisted on the truth. According to T.S., B.W. acknowledged that he was a beast, or an animal and said that he did not deserve her. He expressed the view that he should sleep in the closet and that he may drive his car into a truck. This scared T.S. and she stopped making inquiries and left it alone. She says that B.W. said all of these things at their home in Vancouver, after they had returned from the summer holidays of 2008. B.W., again, denies that this conversation took place.
Despite B.W.’s alleged acknowledgement of wrongdoing, T.S. insisted that she stayed in the relationship because her daughter had been through “enough” and she did not wish to put her through more trauma. She said that she was attempting to make lemonade out of lemons.
(5) S.L. Becomes troubled in late 2011 and the Letter Gets Written
T.S. testified that by late 2011, her daughter was showing serious signs of difficulty. According to T.S., S.L. attempted suicide and was self-harming. She knew that her daughter’s problems were rooted in the sexual touching at the church, now some years previous.
T.S. testified that when she would raise the issue of S.L.’s difficulties with B.W., he would say that he had apologized “many times”. Eventually, he suggested that he write a letter of apology. T.S. testified that she thought this was a very good idea. She says that she left the room and when she came back, the letter had been written by B.W. While she was prepared to acknowledge in cross-examination that she had edited the letter for spelling and grammar, she denied having any input into the content of the letter.
T.S. thought it was good that B.W. wrote it because he had done something wrong and he needed to apologize for it. T.S. was hoping it would help S.L.
Things started to turn around for S.L. in the wake of the writing of the letter and T.S. testified that, ultimately, there was simply no need to show her daughter the letter. She kept it in a drawer for safekeeping.
B.W. agrees that S.L. was very troubled in this period of time. T.S. would speak to him about these troubles. He recommended counseling for S.L. and was prepared to have this happen through his company’s employee assistance program. T.S. eventually told B.W. that S.L. was troubled because S.L. thought that B.W. had touched her inappropriately. He told T.S. that this was not true and that it had never happened. He testified that he asked T.S. to get more details from S.L.
A few days later, T.S. told B.W. that S.L. said that he should recall touching her. He reiterated that it was not true. He was concerned about S.L. and he asked what he could do to assist her in her troubled state. T.S. suggested that he write a letter, saying that she knew he didn’t do it, but that a letter of acknowledgement would assist. She felt that this would settle S.L.’s mind. T.S. reassured B.W. that she knew that he did nothing wrong and that she would destroy the letter as soon as S.L. saw it. It was simply to be a letter of “promise” so that the family could help the child recover and assist in achieving family harmony, a valued Chinese principle. B.W. agreed in cross-examination that honesty is another important Chinese principle, although he was not sure whether it rests on the same level as harmony.
While T.S. said she was sure the letter would work, and gave B.W. a “guarantee” that she would destroy the letter after it was read by S.L., B.W. said he could not write that he had touched S.L. when it was not true. As such, in his first draft of the letter, he included a reference to having accidentally touched S.L. T.S. said that this draft of the letter would not do and that he had to “pretend” that it had really happened, and then write the letter. She worked on his first draft and assured him that while it was “fake”, it would help S.L. to regain her balance and the family could move forward peacefully.
In the end, B.W. testified that he was forced to write the letter. It took three drafts and the final one that was approved by T.S., he wrote out and then signed.
(6) The Letter
The January 23, 2012 letter is a critical piece of evidence in this trial. It is worth quoting from some of its content. Parts read as follows:
“It is something I did to you when you were little and that I will regret for the rest of my life. I touched your private part. I have no excuse for my wrong doing and I felt awfully ashamed ever since, ‘til today. I didn’t mean to hurt you, but I believe I did. I had apologized to you and said sorry verbally before. Now, I write to you for your forgiveness. I promised I would never do that again; not only I wouldn’t, I will protect you from everyone who wants to hurt you in anyway.
Many nights I woke up from bad dreams that reminded me what I did. I so wished I could undo what I did, but I couldn’t.
I will try my best to make it up to you, and be there for you, and pave the road for you to become “somebody” and successful! I dare not to expect to hear your forgiveness, but just want to see you be whatever you want to be; and when you succeed, you come to me and say “thank you, [B.W.] for looking after me these years.” In fact, I’m already proud of you, my daughter, [S.].”
While S.L. testified that her mother told her that B.W. had written a letter of apology, she was never shown the letter. Nor does she have any recollection of him having apologized to her verbally, although her mother also told her that he had done so.
B.W. testified that two to three weeks after the letter was written, S.L. seemed a bit better. He asked T.S. about the letter and she said that she had destroyed it: “I got rid of it”. After writing the letter, he said that he lost himself. He was no longer himself and felt he was under T.S.’s complete control. He said that he felt like a “slave” and that a dark shadow, like a knife, was stabbing at his heart. When pressed in cross-examination, he had difficulty providing examples of his purported enslavement. He said that he trusted T.S. fully and believed her “relentless indoctrination”.
(7) The Break-up and Events that Followed
T.S. testified that in September 2012, she and B.W. separated. She claims that she found inappropriate content related to other women on his phone. She asked him to leave the home and he did. Before he left, T.S. agrees that B.W. went to S.L.’s room and told her that he had done nothing wrong.
T.S. was confronted in cross-examination with the suggestion that, after the separation, she told B.W. that she still had the letter and would return it to him for $200,000. While she agreed that she asked for $200,000, she said it was because B.W. had previously promised to pay for S.L.’s private school. While she also told B.W. that she had the letter, it was merely coincidence that these two topics came up during the same conversation. T.S. testified that she never linked the $200,000 to the return of the letter and she was always prepared to give it back.
B.W. testified that T.S. called him and made it clear that she still had the letter and that she would give it back for one year of his salary. He refused to give her the money, telling her the letter was comprised of her words, not true and she could keep it. She never did give the letter back. B.W. eventually changed his phone number and started to communicate with T.S. through lawyers. By the end of March 2013, he stopped putting money into their joint back account. In April 2013, the complaint was made to the police.
It is not in dispute that the son of S.L.’s biological father called the police from Toronto. T.S. testified that she only told her ex-husband about the matter because she was sending their daughter to a counsellor and she believed that once counseling started, that the matter would be reported to the police.
IV. Credibility Findings
I found a good deal of T.S.’s evidence troubling. She was often non-responsive to questions asked and would ramble for long periods, purporting to answer a simple question. I found that on numerous occasions she went out of her way be critical of B.W.’s ex-wife, who he is now married to again. Sometimes her criticisms of the ex-wife seemed oddly placed. At points, she commented on B.W.’s wife’s cruelty toward B.W. and at other points she called her “moody”.
At other points, I found that she went out of her way to insert what she perceived to be potentially favourable evidence into her answers. For instance, when being asked about her contact with the school authorities, she said that she was told that her daughter had told her teacher in “French”, that her father had assaulted her. She was not asked about the language that her daughter had disclosed in or indeed, whether she had been informed of this fact. Nor do I believe that the school authorities would have told her this. The authorities would have focused on the content of the communication and not the language in which it was conveyed.
Moreover, she acknowledged that she knew that the authorities were under the mistaken impression that S.L. was talking about her biological dad. Yet T.S. did nothing to correct this serious misimpression that could have had significant implications for the biological father. She was prepared to leave the school authorities, charged with the clear responsibility of protecting her daughter and caring for her best interests, under the misimpression that a man living in Ontario had committed a sexual assault on his own daughter. This causes me serious concerns about her commitment to the truth and understanding of the critical need for accuracy when it comes to allegations of criminal conduct.
I was also concerned with her credibility around the letter-writing incident. When first confronted with the fact that there were drafts of the letter, her initial reaction was to deny it. She quickly seemed to recover her memory of a previous draft. I find that this would have been a critical moment for her, in the letter writing incident. She would not have forgotten - even for a moment - the fact that a draft or drafts existed. Like other times, her hesitation in her evidence seemed to be rooted in an effort to determine how her answer may impact the evidence she was giving and the case at large.
I have some serious reservations about T.S.’s credibility.
As for S.L., I found that she tried her best to be truthful. She was a quiet witness and a highly reserved one at that. She has an extremely timid demeanour. I accept that she likely believes what she has testified to and is trying to be accurate before the Court. I did not find that she had an agenda. As below, my concerns with her evidence rest more on the reliability and not the credibility of her evidence.
With respect to B.W., I find that he was a good witness, but like T.S., prone to long, meandering answers from time-to-time. Nonetheless, I find that he agreed with propositions that made sense and did not shy away from things that he may have perceived could hurt him. For instance, he agreed with the proposition that he often carried a laptop computer and that he would attend the downstairs part of the church. He agreed that he wrote the letter.
His demeanour in the witness stand was collected and, notwithstanding a vigorous cross-examination, he did not lose his composure. As well, despite everything, he was quite complimentary of T.S. at times, acknowledging that she is a savvy business person, good with money, highly intelligent and that at least at one point, he genuinely loved her.
While I find that he was prone to exaggeration, suggesting he was like a “slave” and that he had been “indoctrinated”, neither of which propositions I accept, this does not entirely shake my confidence in his credibility.
No one suggested that Pastor W. was anything other than a credible witness, a sentiment with which I agree. As for S.L.’s grade three teacher, while the reliability of her evidence is in issue, her credibility is not questioned.
V. Positions of the Parties
(a) Defence Position
For a host of reasons, Mr. Bains argues that the Crown has failed to meet its burden. Among other things, he emphasizes the following things should cause me concern:
- S.L. is wrong about the coatroom;
- S.L. and T.S. have different versions as to where the first disclosure was made;
- despite the disclosure to her mother, T.S. moved S.L. to Vancouver to live with the man who was said to have assaulted her;
- S.L. is wrong when she says that she was speaking in French when she disclosed to her teacher.
As for the letter, it should not trouble me because B.W. has given a plausible explanation as to how it came to be. It was a catastrophic event that caused him to retreat from the relationship after it was written. The reality is that B.W. is entirely innocent and should be found not guilty. He had a great relationship with S.L. It was a loving relationship. He treated her like a daughter.
(b) Position of Crown Counsel
Crown counsel maintains that I should find B.W. guilty beyond a reasonable doubt. Mr. Bernstein argues that S.L. complained when she was 7 or 8 years of age. The conduct came to light only after B.W. no longer constituted a threat to her. While no corroboration is needed, Mr. Bernstein emphasises that the ultimate form of corroboration has been provided in this case. It lies in the form of a written confession.
Mr. Bernstein says that having regard to the layout of the church basement and the number of people down there on a Sunday morning, the events described by S.L. could have happened. B.W. had access to the basement. As for the suggestion of a coatroom, the defence has placed too much emphasis on it. S.L. did not say it was a traditional coatroom and her description of the room could accord with people having simply left coats on tables and chairs in the room.
As for S.L.’s teacher, she is simply assuming that S.L. used English and has fairly acknowledged that she is not sure. I should have regard to this fact. The teacher conceded that she has a poor memory of the details and I should also have careful regard to this fact. Although not suggesting any impropriety, Mr. Bernstein suggests that the teacher may have simply been persuaded by a conversation with counsel ahead of her testimony. As for the fact that S.L. and B.W. look happy in pictures following the offence, it means nothing. She is simply a little girl making the best of a difficult situation.
Mr. Bernstein says that I should not believe B.W.’s evidence. The explanation for the letter belies common sense and B.W.’s evidence about his reaction following the writing of the letter is a gross exaggeration and one that is unsupported in the evidence. He wrote the letter because he knows it is true, and that he is guilty.
VI. Analysis
As above, I find that S.L. has tried her best to recount what she thinks happened to her. The difficulty I have is not with her credibility, it is with the reliability of her evidence.
She was a young girl of tender years when the sexual conduct is said to have occurred. There is no question that children between four and six years of age, the age that S.L. was when when she said the events occurred, can recall and recount the details surrounding these types of events, sometimes with great detail. It is also true that all manner of sexual misconduct can occur in environments that one might not expect, even church basements. Not only is it entirely within the realm of possibility that a child could be sexually touched in a church basement, but that it could happen while a church service is occurring upstairs and a Sunday school is in full flight downstairs.
With that said, as I look for aspects of the evidence that might lend support to my level of confidence in S.L.’s evidence, it is lacking. I find as a fact that there was no coatroom in the basement of the church. Based on a combination of evidence, but primarily relying upon Pastor W., I find that the room described by S.L. as a coatroom, was actually a classroom at the time. While it could have been empty on Sunday mornings, the child clearly had it in her mind that it was a “coatroom”. It clearly was not.
In addition, I find that the conduct described at the table, while watching a video on B.W.’s computer, would constitute such a brazen attack, that it causes me pause. There is no doubt that brazen sexual attacks can and do occur. But with that said, the manner in which this one is described causes me to question the reliability of S.L.’s testimony. If B.W. was to place his hand down the front of S.L.’s underwear, while she was seated on his lap, I question whether he would have done this with children on either side of him and while seated at a table. I also question whether he would have done it in a church basement while Sunday school was taking place and lunch was being prepared. There would have been multiple adults in the basement at the time. On Pastor W.’s evidence, at least four adults would be making lunch in the kitchen, with large openings to see what was happening at the tables where B.W. is said to be seated with S.L. on his lap with her friends on either side. There would also be numerous Sunday school teachers in the basement at the time.
Again, while brazen sexual attacks on children can and do occur, this would have been a particularly brazen one. One might reasonably question whether, if B.W. was capable of such a brazen attack, incapable of controlling himself in such a risky environment, how this could be reconciled with the fact that he never touched S.L. again after she moved to Vancouver, when he was in an environment where he had complete access to her, even when they were alone from time-to-time. This causes me pause in respect to the reliability of S.L.’s evidence on this point.
While Crown counsel emphasizes the fact that she disclosed to her mother in 2007, and I accept Crown counsel’s submission in this regard, there are significant inconsistencies in the disclosure evidence. For instance, T.S. says that it was in the kitchen and S.L. says it was in the shower. T.S. says that S.L. talked to her about it more than once, yet S.L. says she only spoke to her mother about it once before they moved to Vancouver. S.L. also says that she believes that the conduct was still occurring when she disclosed to her mother, but T.S. is clear that the disclosure was made after B.W. had moved to Vancouver. These inconsistencies in facts also give me significant hesitation in respect to what actually occurred in this case.
While it is suggested that I should also be concerned about the fact that T.S. chose to move to Vancouver to live with B.W. after her daughter had disclosed his sexual misconduct in respect to S.L., on its own, this does not concern me. The fact that a parent makes a choice to live with their child’s abuser does not, on its own, suggest the abuse is not happening. While it may be suggestive of a very poor parenting choice, it is not evidence that necessarily belies the alleged misconduct. I do not find T.S.’s decision to move out west to live with B.W. impacts my decision in this case, one way or another.
What I am very concerned with is the fact that S.L.’s disclosure at school suggested that it was her father that committed the assaults. While S.L. tried to explain the confusion that arose because of her use of the expression “mon père”, I do not accept that this is what happened. I fully accept the teacher’s evidence. She was a very careful witness and was prepared to acknowledge she was fuzzy about some details from that long ago. I find her credibility was enhanced by her frank acknowledgment of this fact. But what she had absolute certainty of, were two things that cause me concern in this case.
First, she taught the personal care kit in the English language. I accept this to be true. Her explanation makes perfect sense. It is a matter of child safety and she does not want anything to be lost in translation and so she teaches the children in the English language to ensure and enhance their safety. I have no doubt that she spoke to her class in English that day. Combining the teacher’s evidence with S.L.’s, I have come to the conclusion that S.L. was also speaking in English that day. S.L. was clear that if her teacher was speaking in English, she would have responded in English and that if she had responded in English, she would have used the expression “step-father”. While S.L. denied that the unit was taught in English, I find that it was and, based on S.L.’s evidence, because it was taught in English, I find she would have said “my dad” or “my father” and not “mon père”.
My conclusion in this regard is supported by the fact that T.S. knew the school authorities were laboring under a misimpression that it was S.L.’s biological father who had committed the acts, but did nothing about it, when it fact she knew it was B.W. Respectfully, this makes no sense. Nor does it make sense that it took T.S. months to confront B.W. with her concerns. Instead of confronting B.W. right away, she chose to travel with her daughter to multiple locations over the course of the ensuing months. She said that she was “waiting” to confront him until they could be “face-to-face”. I find that there would have been a great deal of “face-to-face” time while travelling over the summer months. Her evidence in this regard causes me further concern. It causes me to question who, if anyone, she and S.L. actually believed committed the conduct in question.
This brings me to the critical letter. I call it a critical letter, because it is unequivocally a critical piece of evidence in this trial. Crown counsel, Mr. Bernstein, is right to point out that it is a powerful confession and that while no corroboration of S.L. is required, it is the ultimate form of corroboration. I agree with the assessment in this regard. If the contents of the letter are true, B.W. was confessing to the conduct that S.L. says occurred in the church basement and he is guilty of that conduct.
I have put a great deal of thought into the letter, reading it multiple times and considering its content against the testimony of T.S. and B.W. Having engaged in this task, I have grave concerns about the manner in which this letter came about and the use to which it was put.
I start by observing that I accept B.W.’s evidence that he implicitly trusted T.S. He loved her. His respect for her, at least at the time that their relationship was ongoing, was obvious on the witness stand. His trust is supported by, among other things, concrete evidence like the fact that he had signed a financial power of attorney over to T.S. She had complete and full access to his financial affairs. He entrusted her with all of his wealth, of which there appears to have been a substantial amount. He testified that it is his trust of T.S. that caused him to agree to sign the letter that she was largely responsible for.
Of course, T.S. says that it was all B.W.’s idea and that she only corrected the grammar. While I am not entirely sure that I can resolve where the truth lies on the letter, I do not accept T.S.’s evidence about the letter.
She says it was written to assist her daughter, yet she never showed it to her daughter. While she explains that she held it back because S.L. was doing much better, she testified at other points that S.L. needed counseling and this is why she eventually disclosed what had happened to S.L.’s biological father, A.L. She made this disclosure long after B.W. had left the home. She was fearful, she testified, that once the counseling commenced, the police may be called. Of course, still possessing the letter, if S.L. was in so much difficulty that she needed counseling, as acknowledged by T.S., query why T.S. did not show her the letter at this point, even though B.W. had left the home. T.S. acknowledges she still had the letter. Her evidence on this point, I find, is very difficult to reconcile.
Moreover, looking at the content of the letter, it includes reference to the fact that B.W. had “said sorry verbally before”. Recall that S.L. has no recollection of this verbal apology. She was only told that by her mother. This is consistent with B.W.’s version that T.S. is actually responsible for the content of the letter. It is T.S. who said that B.W. had verbally apologised before. I do not accept that T.S. simply corrected the grammar in this letter. While I am uncertain as to who is responsible for what parts, I find that T.S. asked B.W. to write the letter, was heavily involved in its authorship and that B.W. agreed to sign it because he trusted her so implicitly with its use.
Of course, I also have serious concerns about the conversation involving both the continued existence of the letter and the $200,000. While T.S. made it sound like it was a simple matter of coincidence that a discussion involving whether B.W. would provide her with $200,000 for S.L.’s schooling came up in the same conversation as the letter, this suggestion could be said to defy coincidence. For certain, it could be said to almost defy coincidence. Even if T.S. did not directly link these two concepts, I find that they were at least implicitly linked by being raised in the same conversation. If it is true what she says, that B.W. could have come and picked up the letter up with or without the money, I find that he would have picked the letter up, particularly if he was guilty. After all, if a person who committed the alleged crimes knew that he had a written a confession, and that the confession was still in existence, he would be motivated to make the drive and get the letter. I find that the reason B.W. did not make the drive, and retrieve the letter, is because it was directly linked to the payment of $200,000.
VII. Conclusion
In the end, I am not satisfied beyond a reasonable doubt that B.W. ever touched S.L. with a sexual purpose in mind. Indeed, I am not satisfied beyond a reasonable doubt that S.L. was ever sexually touched by anyone.
B.W. is acquitted.
I wish to thank counsel for their assistance in this case.
MATTER CONCLUDED
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act
I, Tricia Rudy, C.C.R., A.C.T. certify that this document is a true and accurate transcript of the recording of R. v. B.W. in the Superior Court of Justice, held at Brampton, Ontario, on February 27, 2017 taken from Recording 3199-404-084005/17 which has been certified in Form 1.
(Date) ( Signature of authorized person)
Transcript Order Received: February 28, 2017 Transcript Completed: March 3, 2017 For judicial review Notified Ordering Party: March 22, 2017
NOTE: Photostat or Electronic copies of this transcript are not certified and have not been paid for unless they bear an original signature in blue, contrary to Ontario Regulation 587/91, Administration of Justice Act, May 2014.